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Thursday, October 30, 2014

Basudeb Das



Off and on, a section of LIC pensioners raises a question whether Justice MN Bhandari’s judgement contains updation of pension from time to time wage revision or it deals with revision of DA only. Let us examine the issue from legal angle.

  • The Indian Constitution empowers the SC to issue writs for enforcement of any of the fundamental rights conferred by Part III of the Indian Constitution under Art 32. The power to issue writs is primarily a provision made to make available the right to Constitutional remedies to every citizen. The right to Constitutional remedies, as we know, is a guarantor of all other fundamental rights available to the people of India. In addition to the above, the Constitution also provides for Parliament to confer on SC power to issue writs for purposes other than those mentioned above
  • Similarly HC in India are also empowered under Art 226 of the Constitution to issue writs for enforcement of any of the rights conferred by part III and for any other purpose.
What art 32 & art 226 states in the Indian Constitution:
  • “32. Remedies for enforcement of rights conferred by this Part.—(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. 
  • (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. 
  • (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). 
  • (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution 

226. Power of High Courts to issue certain writs


(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—

  • (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and 
  • (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. 
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32”.

The constitutional provision empowers SC to issue “directions, orders or writs” and not necessarily orders are to be issued in every case. In the light of the above provision, let us see what happened in Jaipur Bench of Rajasthan HC. 

A writ petition under Art 226 was filed as per details given below:

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN 
JAIPUR BENCH AT JAIPUR 
S.B. Civil Writ Petition No. 654 of 2007
Krishna Murari Lal Asthana, aged about 67 years and others. 
Petitioners
Vs. 
1.Life Insurance Corporation of India, 
2.Union of India 
Respondents 
In the matter of Articles 14, 16, and 21 of the Constitution of India.
AND 
In the matter of Life Insurance Corporation of India (Employees) Pension Rules, 1995;
And In the matter of Life Insurance Corporation of India Class-I Officers (Revision of Terms and Conditions of Service Rules, 1985;
And 
In the matter of Life Insurance Corporation of India Class II (Development Officers) (Revision of Terms and Conditions of Service) Rules, 1985;
And 
In the matter of Life Insurance Corporation of India Class III & IV (Revision of Terms and Conditions of Service) Rules, 1985;
And 
In the matter of Payment of Pension to the Petitioners as per the substituted Pay scales from time to time;
And 
In the matter of Revision of ex-gratia pension paid to pre-1986 retirees.

2. S.B. Civil Writ Petition No.654/2007
Krishna Murari Lal Asthana & Ors. 
Vs. 
L.I.C. of India & Ors. 
S.B. Civil Writ Petition under Article 226 of the Constitution of India.
Judgement:

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR

ORDER

1. S.B. Civil Writ Petition No.6676/1998
Krishna Murari Lal Asthana
Vs.
Union of India & Ors.
Date of Order : 12th January, 2010
HON'BLE MR. JUSTICE M.N. BHANDARI
Mr.Abhinav Sharma, Ms.Anita Aggarwal,G.C. - for petitioners
Mr. Anurag Aggarwal, Mr.Manoj Singh Ragav
Mr.S.S. Raghav - for respondents
BY THE COURT:
REPORTABLE


These two writ petitions involve common issues, thus are being heard and decided by this order…….

……… In light of the discussion made above, both the writ petitions are allowed…….. The benefit arising out of the directions above would, however, be considered by the respondent Corporation so that every retired employee may get the same benefit.


(M.N. BHANDARI) J.

The writ originally prayed for under Art 226 was not rejected or declared not maintainable, but are allowed which means content of the writ became directives, binding and enforceable in law. It is not like civil appeals where specific orders need to be necessarily issued. As per constitutional provision, writs as prayed for, if allowed, it construes to be Constitutional Order and maintainable in law and binding on parties involved. ( Interpretation by Basudeb Das )
Courtesy: Eastern News.